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A86481 An answer to a certain writing, entituled, Certain doubts and quaere's upon occasion of the late oath and covenant, with desire of satisfaction, for tender conscienced people, to whom it may be exhibited. 5. August. 1643 Imprimatur Joseph Caryl. Hollingworth, Richard, 1607-1656.; England and Wales. Parliament. 1643 (1643) Wing H2486; Thomason E67_5; ESTC R8330 11,137 16

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fact us est Rex item Curiam Comitum Baronum c. Ibidem The Supremacy therefore is not in his personall but in his legall commands He Himself being under the Law subject to the Coercive power of the Law notwithstanding any Commission or protection from the King The King is Supreme in Ecclesiasticis yet He notwithstanding that Supremacy is lyable to Church-Censures (g) William the Conqueror was excommunicated for breaking his Oath at his Coronation at least His Friends Favourites and Agents are and the King cannot annull or make invalid those Censures Neither can He notwithstanding His supremacy in Temporalls make voyd the sentence or judgement of any Court of Record Forces rais'd by the King may be dangerous and destructive to His Person Crown and Kingdom and so by Law be Rebels and Delinquents as the forces now raised by the King are actually adjudged to be and the like forces have formerly been so judged (h) 〈◊〉 11 〈…〉 4. by Parliament from whence ly●s no Appeal and therefore may and ought to be res●sted yet this in judgement of law is no resistance of the King who is never supposed to do against Law 〈…〉 Rex quod 〈…〉 quod 〈…〉 If the King command A. B. C. D. to take up Arms to kill 〈◊〉 a Judge of Assise or ● G. Parliament men whil●st they are doing that Office and they accordingly kill them this is high 〈◊〉 notwithstanding the Kings command and the Indi●…t is found 〈…〉 i 〈◊〉 King●… Ca●e 〈◊〉 And it is not onely lawfull but our dutie to our King both by Law and our late Protestation to resist such forces so raised by the King and to endeavour to bring them to 〈…〉 And they that do so resist do stand for the King 〈…〉 at the Law and ●udgement given 〈…〉 Kings judgement though gi●… 〈…〉 the 〈…〉 standing thereof we 〈…〉 ●…pacit●… (k) This distinction is w●…ted by ●…t●siue 〈◊〉 Edward Cook and many others P●…erall in which 〈…〉 is subject to 〈…〉 infir●… 〈…〉 ●…ain of the Law 〈…〉 the 〈…〉 and 〈…〉 C●…ts of 〈…〉 ●…lly in the Parliament C●…ands and Commission 〈…〉 the King in His 〈…〉 ●…mitis 〈◊〉 ●…ay 〈…〉 that proceed from Him in 〈…〉 Commands and Commissio●… 〈…〉 are those when these disagree for then 〈…〉 and they that are ●…ly loyall that is legall 〈…〉 th●n doth a King hate His 〈…〉 can make a Popish Army then the opposite Army is a Popish Army Had it been for the Kings honour to have raised those forces it had been no dishonour to have them spoken off The Oath and Preamble are as much as may be in such a Case tender of the Kings honour for though they say it is a Popish Army and that it is raised by the King and that it is for the subversion of Religion Laws and Liberties yet they say not that the King doth so intend it His Majestie and His forces may have severall ends and ayms It is no wisedome to complement away our Religion and Liberties for if Salus Reipublicae be supremalex If Rex be propter regnum not regnum propeer regen● Fort●scue Aquinas then the honour of the King is no further to besought then is subservient to the good of the Kingdom God Nature and the Laws of the Land do allow defensive Arms to a subject against illegall and injudiciall violence The Parliament is not a subject for the King is a part and in intent of Law present (m) Master Herles answer to Doctor Ferne. I have seen cited for proof hereof Ashes Tables Errour 65 to 70.21 Iac. c 13 Ceom●tons Iurisdiction of Courts f●● to 20. Smiths Common-wealth l. 2. c 1 2 15 Ed 3. c. 2 3 of all these there are sund●y Presidents Answer to thenin●●en Propositions not onely as a Court of Justice but as the highest Court in which there is a Chair of State for His Person and things agitated there are said to be done coram Reg● Neither are the Lords and Commons in Parliament meerly subjects but are Co-ordinate with His Majestie this being a mixt Monarchy (l) His Majesties Answer to the ninteen Propositions not onely of Supre ●e and subordinate Governours for so the most absolute Monarchies or Tyrannies in the world are mixt but of three Co-ordinate States in the Legislative power and trusted with the ultimate and indisputable power in Case of doubt of declaring what is Law of reversing erroneous Judgements given in Inferiour Courts of damning illegall Pattents Monopolies Impositions Exactions of removing publike grievances and particular wrongs complained of of censuring and judging Delinquents of all sorts not onely in the Kings absence but against His Personall Negative Vote or disassent in case he be present His Majestie saith That the power legally placed in both Houses of Parliament is more then sufficient to prevent and restrain the power of Tyranny which it cannot be in some cases without resistance of the forces raised by the King without such power of resistance in the hands of the Houses all mixture of Government and Limitation of Regall power is vain for the Government at the will of the Prince raising a thousand or but a hundred that may not be resisted will resolve into absolute Arbitrary and Tyrannicall Government Resistance of the forces raised by the King may consist with loyaltie to His Person for the forces are not the person of the King neither is His person ubiquitary with His forces The Law supposeth not that the King is at any time amongst Traytors and Delinquents but as a prisoner especially in Parliament time when he is presumed to be in the House of Lords The safeguard of the Kings Person hath been pretended when other things have been intended Lancashire men were by warrants called to Warrington to guard His Majesties Person which came not there the intent was to gather forces to assault Manchester A guard for His Majesties Person was the foundation of the warre against the Parliament If the Kings Person be engaged in any dangerous expedition more to blame are the Cavaliers they should say it were better that all they were executed then that one hair of His head should fall to the ground 2 Sam. 18.3 But if they will needs expose His sacred Person to hazard then we say To kill or wound the King intentionally and purposely is treason hatefull to God and all good men but to wound or kill Him casually not onely praeter but contra intentionem while we in our own intent and in intent of Law are for His preservation prosecuting Rebells and Delinquents is indeed a crosse and an occasion of sorrow but not of sin to the soul of him that doth it * The King being sick calls for his Physitians to give Him Physick they proceed according to the rules of Art and sincetely endeavour His health if he being perswaded by some do neglect the prescribed rules of Diet and so the Physicked kills in stead of curing
the Physitians are not guiltie In Justs and Torneaments Subjects standing onely on point of honour have returned Launce for Launce stroke for stroke unhorsed disarmed and wounded (n) Hall 16 H. 8. yea killed o Anno 1559. p Anno 1266. their Kings without suspition of disloyaltie The casuall killing of King William Rufus by the glance of an Arrow was no treason The fighting against the Earl of Leicesters forces where King Henry the third was in person and carried about for the countenance of His Actions and the rescuing of Him though He was wounded unawares in the rescue was by Parliament judged to be loyall and faithfull services Finally to omit what Bishop Poinet saith of the power of the great Constable of England If the King should come in the head of the Irish Rebels many whereof are already Him we may and must with as much tendernesse and care of His Majesties Person as will stand with discharge of our dueties resist and help to destroy those Robels that are about Him In reverence of Parliaments and in regard of tender consciences I desire these things first to be cleered least in taking this Oath we go on Popish grounds in these three principalls viz. Of implicite faith of infallibilitie of Councell and the Oath ex Officio The Papists by an implicite faith Quest 4 beleeve and swear because their Church saith it And why and how can our Countrey people beleeve and swear but because the Parliament faith it The Papists think the Popes councell cannot erre therefore engage their faith to beleeve and their practises to do what de future shall be determined I desire therefore to know the extent of the word continued will assist the forces raised and continued by both Houses it seemeth to be meant do futuro else raised would have served the expression thus it may be as large as c. and ingageth our assistance to them without limitation of lawfull continuance as if this Army or Parliament-Councell could not erre in ordering the same The Papists as was exclaimed in our Bishops Courts have an Oath in their Inquisition to oblige men either to accuse or forswear themselves and doth not this Oath oblige men if conscious of this that is meant by the Plot either to accuse themselves which is unnaturall or forswear themselves which is Diabolicall The Parliament do publish in their Declarations the Reasons and Grounds of their Votes and Actions Answ the Equitie as well as the Authoritie of their decisions and therefore cannot be said to require an implicite faith The Judgement of the Parliament is not infallible but to us it is inevitable Our Judgements are not in-thralled to beleeve what they say but they are bound up and superseded by theirs and our interests are intrusted with them and subjected to their decisions If His Majestie should concurre with the Houses in a Declaration of the Law could you not then submit thereunto without contradiction and rest therein without further debatement except you go on Popish grounds of implicite faith and infallibilitie Our holding the Parliament to be the supreme Judicatory in case of the Kings absence or opposition doth no whit alter the case If any implicite faith and infallibilitie must be placed any where it is more safely placed in a generall Councell then in the Pope and consequently in the Parliament rather then the King (q) This comparison was made by Acneas Sylvius in the Councell of Basil To avoyd processus in infinitum which nature abhorres there is a power resting some where which is the ultimate and indisputable power of expounding the Laws which power resting in the Parliament must be assisted by all within the jurisdiction of the Court and not be resisted or controuled by any upon pretence of possible or actuall errour in them If any Court of Record do erre I am excused yea justified by the Law if I living within their jurisdiction do submit to their sentence yea obey it till it be reversed As if A. free from all Felony be out-lawed for felony which is but a Declaration by and before the Coroners every subject in the Countie is bound so farre to credit the said Judgement as not to receive releeve and comfort A upon pain of being accessary to felony (r) The Kingdoms Case citeth 12 Ed. 2. Coron 377. which is cited 19 Eliz. dy 355. And in case of Attainder by Parliament though supposed to be unjust the King Himself cannot discharge the persons so attainted but by reversing it in Parliament (ſ) 1 Hen. 7.4 There is no necessicie that continued should be meant de futuro seeing but a line or two before both raised and continued are spoken de preterito But if it be is I beleeve it is spoken d●future it cannot be so large and boundlesse as c. seeing the ground of my promising assistance is the limitation of the Parliaments forces in my belief to be for their just defence and the just defence of the t●●e Protestant Religion and Libertie of the Subject If I say whereas I beleeve A. B. is a Protestant I will assist him in the maintenance of his Religion I do not engage my self to maintain Popery in case he should turn Papist The King and His Councell and his forces may erre therefore the Inhabitants of Chester Shrowsbury or any other place which have engaged themselves by Oath upon their bele●f of His Majesties Protestations to assist Him and His forces against the forces of Robert Earl of Essex Sir William Br●reton c. especially de future which is as large as c. and without limitation of lawfull are in this respect as guiltie as they that take this Oath This Oath differs much from the Oath ex Officio which you say is Popish for it is tendered not onely to suspected persons nor principally intended for the finding out of guilt or the punishment of guilty persons when found out though such like Oaths were in use Num. 5.19 Exod. 21.11 And now in Courts the person indicted doth plead guiltie or not guiltie and so either detects himself which is unnaturall or lyes which is Diabolica●l But to the whole Kingdom to binde them to the detestation and non-execution of the said or the like plot and to fidelitie for after times R. S. the Author of these Q●aere's doth I suppose refuse this Oath yet I hope he doth not hereby accuse himself to be conscious or guiltie of the said Plot. I may not especially by solemne Oath take Gods name in vain Quest 5 nor multiply Oaths to the same intent I took the Protestation to preven the ruine of Parliaments Kingdom and true Protestant Religion therefore this present Oath expressed to be to the same intent is needlesse and vain if not shew the necessity of it You say Answ but you prove not that the taking of this latter Covenant is a taking of Gods name in vain You see it is more large plain particular then the
Protestation and the Protestation was not sufficient to its end many notwithstanding the same revolting from plotting and practising against Religion Parliament and Kingdom under pretence of standing for the King The Jews of old and Christians of late did often renew their Covenants with God to the same intent David and Jonathan made a Covenant and renewed it once and again to the same intent 1 Sam. 18.3 and 20.16 17.23.18 yet did not take Gods name in vain The Governour of Christer hath imposed severall Oaths upon the Inhabitants of Chester to the same intent viz. the securitie of the Citie the resistance of the Parliaments forces It seems that they also do take the name of God in vain An Oath ought not to be urged on them Quest 6 that shall lye in taking the same Jerc. 4.2 Thou shalt swear in truth Now it is more then probable that some of the multitude seeing it is pressed on all the Kingdom shall lye For when they have told God and the Congregation that they heartily sorrow for their sins they will tell God a solemne lye Now though we may exhort all men to repent yet it is questionable whether we may urge them to swear that they repent who do not so By this Argument Ministers may not in their own Answ and the peoples name say We are heartily sorry for these our misdoings the remembrance c. Nor God-fathers and God-mothers especially in the name of the Children say I forsake the devill c. I beleeve in God c. Nor Children be taught to say Our Father Nor the Oaths of Supremacy All agiance and Protestation nor any other Oath be tendered to the whole Kingdom upon any occasion seeing it is more then probable that some of the Ministers and people are not heartily sorry c. Some of the Gossips do not fotsake the Divel c. Some of the Children have not God to their Father Some Popish treacherous perjured persons will in taking the Oaths of Supremacy c. Tell God and the World a solemnelye On the solemnelyes assertorie or permissory or both that were told by the people Josh 24. 2 Chro. 15. 2 Chro. 23. Neh● 9. c. 10. That man is a son of Belial which living in these sad times is not in some measure sorrowfull for his own sins and that intends not to endeavour the amendment of his own wayes surely he is none of the tender conscienced men for whose satisfaction these were propounded The Inhabitants of Chester have sworn that they rest fully assured of His Majesties Princely truth and goodness c. It is well if some of them to save their goods and liberties Quest 7 have not told God and the world a solemne lye I desire to know the extent of those words Will according to my power and vocation assist the forces of the Parliament against the forces c. For it may be said That he that warreth not in his own person he that slyeth at any exigent he that leaveth his Armour he that taketh or giveth quarter he that giveth not all his estate immediately to these warres it may be said That these have not done according to their power and so are forsworne and there is the more reason for this question because some have taught and others have practised this for a doctrine that you may not take or give quarter in these warres An unnaturall and bloody resolution When you know the extent of the words To the uttermost of my power in the Oath of Alleagiance Answ and the Oaths imposed upon Chester and Shrowsbury and of the words To my power in the Protestation and Oath of Supremacy the Oaths which you have already taken Then you will guesse at the meaning of the words accerding to my power and vocation in the Oath now to be taken where the word vocation limiteth the word power for no man hath a vocation to any unlawfull or irrationall any unnaturall or bloody resolution or action If any man say or teach as you intimate some do They have as little abilitie as they have authoritie to expound the Oath It may be some others do so explain it that any Malignant in the Kingdom may take it without forsaking his own principles But Inter utrumque via est An Oath is to be taken when we are thereunto called by lawfull authoritie Quest 8 and may be refused when lawfull authoritie prohibiteth the same or exempteth inferiours from the same Now though I question not the Parliaments authoritie in enjoyning this Oath yet I also beleeve that our Kings authoritie is a lawfull authoritie if not supreme also who by Proclamation prohibiteth this Oath And therefore I cannot conceive a lawfull calling to this Vow and Covenant Num. 30.5 A woman hath no power to vow that which her father disavowes and how then can a subject have power to vow that which the King disavoweth is not Rex pater patria An Oath may be taken lawfully by private persons to give satisfaction in some weightie doubt though they be not thereunto called by any authoritie at all 1. Jonathan and Davids Covenant stood firm though condemned by Saul 1 Sam. 22.7 8. who was the father of one the father in law of the other and the King of both Yea they afterward renewed that Covenant 1 Sam. 23.17 18. The Kings lawfull authoritie is in His Courts of Justice and His Proclamation for the reversing of the sentence and judgement of any Court of Record especially of the Court of Parliament which is His highest and honourablest Judgement * King Iames. Basllicon Doron is ipso facto null and voyd especially when the King is amongst known and judicially declared Rebels and Delinquents for then His Proclamations may be judged to be the acts of the said Delinquents over-awing mis-informing or otherwise abusing the King A King of England was once articled against as for other things as that Without consent he had carryed away the Jewels and Plate of the Crown and did hold a fantasticall opinion That the Laws of the Realm were in his head and sometimes in his breast So for that He craftily devised certain privy Oaths contrary to the Law and caused His Subjects to be sworn thereto Though this be now ordinarily done not so much by the King as by the Cavaliers within their Dominions of Northumberland Cumberland Yorkeshire Chester Shrowsbury c. But the authoritie of Parliament was never till of late questioned for greater acts then these The late Protestation which well understood contained that very thing which you dislike in this Covenant viz. of resisting the forces raised by the King in some cases stands good by your own rule for the King did not publish any Proclamation against it Numb 30.4.7 The vehement pressing of this Oath may prove prejudiciall to the Cause and to the end Quest 9 to which it is pressed for being thus questionable for the lawfulnesse of it it may make many to esteem worse of the Parliament Diversmen that have assisted the Parliament will not in likely hood take this Oath but perhaps hereupon desert the Cause As for that which somesay it is vehemently pressed to the intent to discover rotten hearts I answer it is no signe of a rotten heart to fear an oath nay rather that is the rotten heart that can disgest such solemne Oaths without fear and scruple These and the like quaere's in the hands of common people do not help the matter Answ Christ sometime spake hard speeches which caused many to leave him Joh. 6.1 We had rather have open foes then treacherous friends I beleeve those hearts are rotten quantum ad nos causam nostram that have no juster scruples then these and yet refuse this Oath A man may truely fear an Oath yet take the Oath of Supremacy Alleagiance Protestation and this also Other brief Quaere's with their Answers IS there any president of such an Oath to resist forces raised by their Quest 1 Kin●s Yes Answ th● Scottish Covenant judged lawfull by Parliament and the Union of the Hollanders which I hope are no Rebels for the Prince of Orang is one Briesly Kingdoms in the like Case do usually take th● like course to prevent treachery and division The King and Parliament are here divided Quest 2 is not this against my Protestation This Covenant doth not disannull any of our former Oaths and Covenants Answ The late Plot the occasion of this Oath being rather against Religion Parliament and Kingdom then against the person of the King therefore the one is mentioned not the other Th● Unitie between King and Parliament in these sad divisions cannot be better kept then by cleaving to the Parliament For the King is legally presumed to be in Parliament not contra The King hath protested upon the Sacrament Quest 3 that He will maintain the Protestant Religion without connivance at Popery c. It is not certain that the King hath so protested Answ if he have and His intentions be reall yet this layes no Bond on his Successors muchlesse on the Queen the Papists and Rebels now in Arms by whom our Religion is rather endangered then by the King which keep not Covenants and Truces that Turks would keep for Popish principles will admit the taking and breaking of solemne Oaths and have not suffered the King to keep his former many solemne Protestations scarce the same day they were made Si dissimulandum Regnandi causa dissimulardun qui n●s●it dissimulare nescit regnare Should Popery and Tyranny be professedly maintained sew Protestant Subjects would cleave to that partie If His Majestie were from amongst Delinquents Atheists Papists Aliens He would I beleeve keep His Protestations Prov. 25 Remove the wicked from about c. It is our dutie therefore to rescue Him out of their h●nd● that He may keep His Protestations FINIS
AN ANSWER TO A CERTAIN WRITING Entituled CERTAIN DOVBTS And QVAERE'S Upon occasion of the late Oath and Covenant With desire of satisfaction for tender Conscienced People to whom it may be exhibited 5. August 1643. Imprimatur Joseph Caryl LONDON Printed for Luke Fawne and are to be sold at the signe of the Parrot in Pauls Church-yard 1643. Sept. 11. TO THE Right VVorshipfull And much honoured COLONELLS Ralph Asheton Esquires Richard Holland Esquires And the rest of the Colonells Commanders Officers and Souldiers in the Countie Palatine of Lancaster AN ANSWER to a certain writing Entituled Certain Doubts and Quere's upon occasion of the late OATH and COVENANT with desire of satisfaction for tender conscienced People to whom it may be exhibited Question 1. FIrst I doubt how I can swear in truth and judgement or in truth and knowledge according to Jere. 4.2 For however the Parliament may to it self have just grounds for what they say yet to me this is but T●s●imonium humanum and though a man think or beleeve all true that is in this Oath and in its Preamble asserted yet it is not therefore in an Oath to be avowed or disavowed I may in some cases swear upon my own knowledge or ex testimonio Di●●ino but I may not swear upon other mens knowledge As in Logick Quod nescit predicare de est in secundo adjecto nescit predicare de est in t●●ti● adjecto So in Divinitie Quod nescit jurare de est in secundo adject● nescit jurare de ●st in tertio adjecto He that cannot swear that this plot was cannot avow it to be wicked or treacherous Answ It is written in the Law The Testimony of two men is true and by the month of two or three Witnesses shall every word be established But in this Case of the Plot we have the confession of Master Waller and of others two whereof were executed for their guilt herein a Chil●●●●● I am k●●● and the Declaration not of one or two Members in Guild-Hall London but of both the Houses to be read in all parish Churches and Chappels and a publike day of thanksgiving appointed for the deliverance from in which though it be but Testimonium humanum is so convincing that the disbelief or doubting of the veritie of the Plot doth lay an imputation either of very great weaknesse or horrible wickednesse on the Houses of mocking God and man The Law of the Land gives so much credit to every Court of Record That no averrement must be taken against it none be admitted to contradict it or to say it is not true no not the King Himself (b) Kingdoms Case p. 11. yet we are not required to swear that there was such a Plot or that it was wicked and treach●rous but upon supposall of the Parliaments assertion and our beli●●● thereof that we detest and abh●rre it May not a man swear that he detesteth the wicked and treacherous designe of the Gun-Powder Treason c Gun Powd●r Treason is fathered on the ●uritans or the Irish Rebell'on (d) The Kings Commission is pretended for it therefore they say it is no Rebellion Seeing there is but Testimonium humanum for either of them The People made a Covenant with King Joash upon 〈◊〉 of ●●hojadah that he was the Fings sonne which was but T●●●● 〈◊〉 humanum 2 King 11.4 and 17. though the Queen cryed Trea●●● Treason vers 14. No man may hence forward swear that he will 〈◊〉 true and faithf●ll to Charles the ●●●full King of England or that he rests ●ully assured of His Majesties Princely t●uth in His Protest●tions Seeing there is but Testimonium humanum that there is a King that His name is Charles that He is the lawfull King that those Protestations are His that go under His name for none can swear these things ex Testimonio Divino and few if any can swear all of them of their own knowledge How can I swear in righteousnesse as I am commanded Quest 2 Hosea 4 2. Is it a righteous thing to vow assistance to every man that taketh this Oath without limitation of lawfull taking and lawfull pursuance thereof but may there not be some that will pursue this Oath by lying stealth murder oppression c. The word 〈◊〉 was expressed in the Protestation Answ and we are bound by the jud●●ment of Charitie Matth. 7.1 so to understand it here even as when the People answered Joshua All that thous command ●st as wewi●●● and whither soever c. Josh 1.16 And Wives in the forme of marriage do vow to love honour and obey their Husbands No man hath a vocation to any unlawfull thing he that doth unlawfully Eatenus doth not pursue this Oath though he may think he doth but I am not bound to assist every man in whatsoever he thinks he doth in pursuance of the Oath but in whatsoever he indeed doth in pursuance thereof They that without warrant of Law do take away Mens Goods and Lives and they that countenance and assist them are Theeves and Murderers Nihil ●l●ud potest Rex quam quod de jure potest Bracton now Judicium Guriae est quasi Juris dictum and in the Courts alone doth the King legally judge But the Kings word is no warrant His will no Law whereby to take away the Lives and Goods of our Neighbours nor will they free a man in foro civili much lesse in Divino from being Murderers or Theeves I must not forswear Psal 15.4 Quest 3 Now how can I that have sworn Alleagiance to the King and lately protested joyntly to maintain the Kings honour and just priviledges of Parliament how can I without perjury swear to this Oath the Preamble whereof calleth the opposite Army a Popish Army and saith it is raised by the King and it is for subversion of Religion Laws and Licerties this is small honour for how can I maintain the Kings Honour Person and Crown and fight against the Army which is said to be raised not by ill Concomitants but by the King The Oath of Alleagiance being intended for Papists Answ and others onely quatenus lyable to that infection is in effect thus much I swear I will do nothing against the King by the Authoritie of the Pope and Sea of Rome (e) See God and the King Printed by speciall command p. 21. to the 30. See more Page 8 9 10. The Oath of Supremacy was intended to thrust out the Pope and to discover Papists and not to determine the present difference between the King and Parliament or the King and Kingdom for Parliament is the Kingdom to all intents and purposes of Law (f) Sta●nta universi regni per regem c. Cowell and it makes the King supreme over all persons Rex non habet parem nee superiorem Bracton But not over the Laws or the Judgements of his Courts for so Rex habet superiorem Deum scilicet legem per quam